Tripura

StateCommission

A/26/2021

Miss. Bandita Choudhury - Complainant(s)

Versus

The Branch manager Oriental Insurance Co. Ltd - Opp.Party(s)

Mr. Malay Debnath, Mr. Swarup Pandit, Mr. Rajesh Chakraborty

09 Dec 2021

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

Case No. A.26.2021

 

 

 

1. Miss Bandita Choudhury,

D/o Late Bijitendra Narayan Choudhury,

Resident of Jorapukur, Banamalipur, 

P.S. East Agartala, West Tripura.

… … … … Appellant/Complainant.

 

Vs

 

 

1. The Branch Manager,

Oriental Insurance Company Limited,

H.G.B. Road, Agartala,

Near Sarkar Nursing Home, Agartala,

District - West Tripura.

2. Senior Divisional Manager,

Raksha TPA Ltd.,

Prag Plaza, 2^nd Floor, Near Super Market,

Bhanga Ghar, G.S. Road, Guwahati - 781005.

… … … …  Respondents/Opposite Parties.

 

 

Present

 

Dr. Chhanda Bhattacharyya

Member

[Officiating President]

State Commission

 

Mr. Kamalendu Bikash Das

Member

State Commission

 

 

 

 

 

For the Appellant:                               Mr. Swarup Pandit, Adv.

For the Respondents:                           Mr. Prahlad Kumar Debnath, Adv.

Date of Hearing:                                    12.11.2021.

Date of Delivery of Judgment:               09.12.2021

 

 

J U D G M E N T

The instant appeal is filed against the order dated 17.12.2020 passed by the learned District Consumers Disputes Redressal Commission (hereinafter referred to as District Commission), West Tripura, Agartala in Case No.CC.81 of 2019 whereby and whereunder the learned District Commission dismissed the case for default. The appellant has also filed an application for condoning the delay of 198 days in preferring the appeal.

2. The delay condoned and the appeal admitted.
3. Heard Mr. Swarup Pandit, Learned Counsel appearing on behalf of the appellant (hereinafter referred to as complainant) as well as Mr. Prahlad Kumar Debnath, Learned Counsel appearing on behalf of the respondent (hereinafter referred to as opposite parties).
4. Brief facts of the case are as follows:-

The complainant filed a complaint before the learned District Consumers Redressal Commission, West Tripura, Agartala on 24.09.2019 claiming compensation amounting to Rs.5,00,000/- from the opposite parties and for that she filed her affidavit in chief before the learned District Commission on 14.02.2020 along with the discharge summary of Manipal Hospital, Bengaluru where her father got admitted. After filing affidavit in chief, next 06 (six) consecutive days were fixed for cross examination of the complainant witness, but the complainant remained absent for all those days before the learned District Commission due to some reasons related with her father’s illness. The father of the complainant was seriously ill and got admitted first at ILS hospital and stayed there up to 07.01.2020 and subsequently for better treatment; he was transferred to Bengaluru on 09.01.2020 and discharged from there on 18.01.2020. Later on, her father was admitted at Manipal Hospital, Bengaluru on 25.01.2020 and discharged from there on 29.01.2020. But due to rapid deterioration of the physical condition, her father was not able to come back to Tripura from Bengaluru. As the complainant was the only person to look after her father and assistance for daily activities was needed for her father, the complainant was bound to stay with her father at Bengaluru. In the meantime, the Govt. of Tripura as well as the Central Government declared locality wise lock down due to spread of Covid-19 and for that also the complainant failed to come back and appear in the learned District forum to adduce her evidence. Due to serious illness of her father, she even could not communicate with her counsel. On 16.08.2020 the father of the complainant expired for which she had to face a state of depression for long time. Due to long absence of the complainant before the learned District Commission, her complaint vide No.CC/81/2019 was dismissed by the learned District Commission for the default of the complainant.

5. Being aggrieved by the decision of the learned District Commission, the appellant has filed the instant appeal.
6. Mr. Pandit, Ld Counsel, while arguing for setting aside the impugned order of the learned District Commission would contend that the learned District Commission dismissed the complaint petition for default without considering the adverse situation that the appellant had to face for her father’s illness and as well as the movement restriction due to Covid-19 pandemic.
7. On the other hand, Mr. Debnath, Ld. Counsel for the respondent would contend that the policy benefit of the appellant is still pending due to non submission of the relevant documents before the learned District Commission and the appellant did not appear before the Commission for several times. However, he has also said that he has no objection if the matter is remanded to the learned District Commission, after setting aside the impugned order subject to payment of cost.
8. We have gone through the orders passed by the learned District Commission from which it appears that the complaint case was admitted on 04.102019 and thereafter the case was fixed on 08.11.2019 for S.R. and filing written objection by the O.Ps (If any). On 08.11.2019, the complainant did not take any step, the opposite parties appeared through their counsel and submitted written objection. The complainant was asked to submit statement on affidavit on 27.11.2019. On 27.11.2019, Ld. Advocates from both sides were present. On behalf of the complainant a petition was filed praying for time to file the statement on affidavit, time was allowed and the date was fixed on 18.12.2019. On 18.12.2019, no step was taken by the complainant. Ld. Advocate from O.P. was present. The complainant was given last chance to submit statement on affidavit on 16.01.2020. On 16.01.2020 Ld. Advocates from both sides were present. Ld. Advocate for the complaint prayed for time as she was out of station for illness of her father, who was a cancer patient. For fair end of justice, the case was adjourned and was fixed on 14.02.2020 for submission of statement. On 14.02.2020 both the counsels were present. The complainant and her one witness submitted statement on affidavit along with a discharge summary issued by Manipal Hospital, Bengaluru in the name of her father Bijetendra Narayan Chowdhury. On 23.03.2020, the date was fixed for cross-examination. The Ld. Advocate for the complainant filed a petition seeking adjournment, accordingly the cross-examination was fixed on 12.05.2020 and the case was adjourned for the day. On the next 03 (three) subsequent days i.e. on 12.05.2020, 17.06.2020 and 10.08.2020, no steps were taken from either sides of the parties due to Covid-19. Accordingly, the case was adjourned for all the three days.
9. On 09.10.2020, no step was taken from the O.P. and a petition was filed from the complainant’s side praying time & time was allowed and the date was fixed on 17.12.2020. On 17.12.2020 no step was taken from the side of the complainant. Ld. Counsel on behalf of the O.P. No. 1 and 2 was present and stated that the complainant remained absent for four consecutive days and there was no cause of action. He also contended that the complainant did not submit relevant documents to finalize her claim. He submitted to dismiss the case. According to the learned District Commission, non appearance of the complainant to face the cross-examination even after filing the examination-in-chief indicates unwillingness of the complainant to proceed the case further. Hence the complaint was dismissed for default.
10. According to us, the appellant had no doubt taken long time to finalize her case, still considering the adverse situation related with Covid-19 pandemic, the complainant might be given another chance as last to adduce her evidences instead of disposing the case on default. We are also of the opinion that the learned District Commission should decide the case on merit, where the written statement of the complainant was already with the learned District Commission to adduce her evidence.
11. In view of the above, we are of the considered opinion that this is a fit case where the matter should be remanded to the learned District Commission to decide the case afresh. Accordingly the impugned judgment is set aside and the matter is remanded to the learned District Commission to decide the case afresh subject to the payment of Rs.5,000/- (Rupees Five Thousand) only by the complainant to the opposite parties within seven days from today.

The learned District Commission shall issue notice upon the parties for their appearance and hear the case afresh after providing opportunities to the parties to adduce their respective evidences subject to payment of cost as ordered by this Commission.

In the result, the appeal is disposed of.

Send down the records to the learned District Commission, West Tripura, Agartala.